Indi’s MLQ v Saguenay review: The Supreme Court decision

Thus far in the series, I’ve told the story of the events leading up to the landmark Mouvement laïque québécois v Saguenay (City) ruling. Now it’s finally time to talk about the ruling itself.

Let me quickly recap the case history so far.

In 2006, Saguenay resident Alain Simoneau asked mayor Jean Tremblay at a municipal council meeting to stop opening prayers with a Catholic prayer. Tremblay refused, so Simoneau, with the help of Mouvement laïque québécois (MLQ), filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (CDPDJ; Québec’s human rights commission) in 2007. In addition to the prayer itself, Simoneau also requested the removal of religious symbols from public meeting spaces.

Realizing that his blatantly Catholic prayer would almost certainly be ruled unacceptable, Tremblay passed a by-law changing the prayer to a less-obviously-Catholic, more ‘non-denominational’ prayer, and enshrined the practice officially. Nevertheless, the Mayor continued to perform obviously Catholic gestures and rituals before and after the ‘non-denominational’ prayer. He also publicly asserted the practice was Christian – even specifically Catholic, and publicly harassed Simoneau in council meetings, leading to rebukes from every level of court throughout the case.

The CDPDJ referred the case to the Tribunal des droits de la personne (TDP; Québec’s human rights tribunal) in 2008, and the TDP ruled in favour of Simoneau, finding the prayer and the religious symbols discriminatory. The TDP gave the following orders:

• The by-law enshrining the ‘non-denominational’ prayer is invalid;
• the city, the council members, and the Mayor must stop praying in council chambers;
• religious symbols must be removed from any place the council has public meetings; and,
• $30,000 in moral and punitive damages should be paid to Simoneau.

The Mayor appealed, and in 2011, the Québec Court of Appeal set aside the Tribunal ruling, and instead substituted its own.

The Court of Appeal used bizarre and illogical reasoning to conclude that:

• because the prayer was not particular to any specific religion, it was ‘universal’;
• it’s okay for the state to perform discriminatory religious rituals and use religious symbols if they are ‘historical’, or part of the state’s ‘heritage’;
• because Simoneau could sit politely through the prayer without catching fire, there was no discrimination against him or his beliefs;
• crucifixes are not recognized as religious symbols if they don’t have Jesus nailed to them; and
• the state does not have a duty to religious neutrality, but rather only to ‘benevolent neutrality’, which is literally non-neutrality practised in a way that is only mildly coercive.

That was the state of affairs when the case came before the Supreme Court, on 14 October 2014.

Today we know the outcome of the case: on 15 April 2015, the SCC allowed MLQ’s appeal, effectively wiping out all the nonsense from the Québec Court of Appeal, and restoring the original decision by the Human Rights Tribunal. But at the time, there was much concern about how it would turn out. Government prayer had never before been tested in the Supreme Court (that I’m aware of), or in any of the provincial superior courts… except the Ontario Superior Court of Justice, and there it was tested twice in the last 15 years. In 1998’s Freitag v Penetanguishene (Town), the OSCJ ruled against a Christian prayer… but in 2004’s Allen v Renfrew (Corp. of the County), it ruled in favour of a ‘non-denominational’ prayer. The latter ruling was concerning.

(Also of note was the 2001 Ontario Court of Appeal ruling in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission). That ruling wasn’t really about whether government prayer is cool, it was about whether a human rights commission has authority over the practices of parliament. Basically, the OHRC said that the Ontario Parliament should not open with the Lord’s Prayer, and Parliament responded with: “Fuck you, you can’t tell us what to do.” The Court sided with Parliament, so the actual legitimacy of the prayer was never really tested.)

Despite that worrying precedent, there was strong reason for hope. The Supreme Court under Beverley McLachlin has generally been a paragon of reasonableness and insight (in stark contrast to the clown show down south), and strongly progressive. McLachlin herself has an amazing human rights track record. For example, right now we’re still celebrating the Carter v Canada (Attorney General) case released in February that overturned the 1993 Rodriguez v British Columbia (Attorney General) and struck down the ban on physician-assisted suicide. Not only did McLachlan lead the SCC in the 2016 ruling, she was the only person still on the court who had taken part in the 1993 ruling… and she had been the only dissenter then. Also, she is the one who gave royal assent to same-sex marriage in Canada in 2005 (she was acting as Deputy Governor General while Adrienne Clarkson was in the hospital at the time).

And let’s face it, the reasoning for state prayer is convoluted and ridiculous even on a good day. With the McLachlin court’s track record, we knew we had a good shot, and we were right.

The Court’s decision was unanimous, with Justice Rosalie Abella dissenting on a technical point (which is really interesting, and I’ll talk about it in the next instalment). The majority opinion was written by Clément Gascon.

At the time Gascon was the newest member of the SCC – in fact he’d only been appointed less than four months before the case was heard. MLQ v Saguenay was his first majority opinion. It’s a little surprising that he was the one who wrote it, because this being a human rights case, it was right up Abella’s alley. But of course, Abella had a minority opinion. So, it fell to Gascon, and he did a wonderful job of it. Between Saguenay Mayor Jean Tremblay and the Québec Court of Appeal’s Guy Gagnon, we’ve had more than a fair share of villains in this story. Now it’s time to balance the scales with a new hero: Clément Gascon.

So let’s go through Gascon’s ruling, step-by-step.

Before he begins, Gascon clarifies that the central question is whether the prayer is discriminatory (SCC p.23). This is important, because it’s a subtle rebuke to what happened in the Québec Court of Appeal, where Gagnon made the central question about the state’s duty of neutrality (QCCA p.37). The state’s duty of neutrality is relevant to answer the central question, but is not the central question itself. So having set this foundation, Gascon tackles the basis for the tricks Gagnon used to wipe out the Tribunal’s ruling and substitute his own.

First Gascon brushes aside Gagnon’s justification for ignoring the sole expert witness for MLQ, Daniel Baril (SCC pp.31–44). Gagnon had decided that because Baril had connections with MLQ, he was biased, and thus could not be an expert witness. But the justification Gagnon used was the standard for court-appointed expert witnesses. Not only was Baril not court-appointed – he was an expert witness chosen by the participants – the Human Rights Tribunal is not a court. Interestingly, Gagnon did not see fit to declare any of Tremblay’s experts inadmissable, even though – for example – Solage Lefebvre admitted (after some prodding) to believing in Catholic dogmas.

Gagnon should have just looked at the substance of Baril’s testimony, to see if it was reasonable. And it was. Thus, Baril was a perfectly legitimate expert witness, and Gagnon was wrong to dismiss his testimony. That was a good thing, because Baril’s testimony destroyed the testimonies of both of Tremblay’s expert witnesses, and the Tribunal accepted it in making its decision in MLQ’s favour.

Next Gascon gets to the real trick. To understand what’s going on, let me quickly recap the standards of review for administrative tribunals, as outlined in the 2008 Supreme Court case Dunsmuir v New Brunswick:

• Reasonableness: This is the “normal” standard by which an appeals court should review an administrative decision (assuming there isn’t a reason to use the correctness standard). Basically: “Was the decision made reasonably?” The reviewing court is supposed to realize that the group that made the original decision knows their shit, and was working within their field of expertise (expertise which is probably beyond the Court’s own expertise in the matter). All they have to do then, is just make sure administrative tribunal didn’t fly off the rails.
• Correctness: This is the stricter standard by which an appeals court can review an administrative decision. Basically: “Was the law applied correctly in making the decision?” The reviewing court is supposed to ignore the decisions made by the administrative tribunal, and instead try to reconstruct them using proper legal standards. This standard is meant for cases where a decision was made that has important and wide-ranging legal consequences – basically it takes away the administrative tribunal’s power to make those kinds of decisions, and puts that power in the hands of the courts.

Basically, the idea is that the appellate court should assume the tribunal knows what the fuck it’s doing and respect the authority given to it by Parliament… unless the tribunal is overstepping its bounds.

What Gagnon did was pull a little sleight of hand. In order to determine whether the state has the right to pray, one must consider the extent of the state’s duty of religious neutrality. So even though the main issue the Tribunal was considering was “is the prayer discriminatory?”, Gascon pointed to this other issue – “what is the state’s duty regarding religious neutrality?” – and made that the main issue (QCCA p.37: « Ici, l’enjeu du pourvoi porte principalement sur le thème de la neutralité religieuse de l’État. » / The issue in this appeal deals primarily with the religious neutrality of the State.) Since the question of the state’s duty of religious neutrality is of “central importance to the legal system”, it triggers the stricter “correctness” review… which means throwing out what the Tribunal said about it, and substituting the Court of Appeal’s opinion. And since it was (according to Gagnon) the “primary” issue in the case, that gave the Court of Appeal clearance to throw out everything the Tribunal said… even the stuff about whether the prayer was discriminatory.

To that, Gascon said: Nice try, but no.

Gascon agrees that the neutrality issue warrants a correctness review (SCC pp.45–50). (Abella disagreed on this point, and only this point, as mentioned in p.51 and later explained in pp.165–173. We’ll get to her minority reasoning in the next instalment.) However, that doesn’t mean everything else in the decision also warrants a correctness review. For example, the question of whether the prayer is discriminatory deserved only a reasonableness review… in other words, the Court of Appeal did not have the right to ignore or replace the Tribunal’s reasoning on the issue.

Basically, Gascon is saying that the decisions of administrative tribunals must be respected, so long as they are:

• reasonable, transparent, and intelligible (SCC p.50);
• within their jurisdiction; and
• not of central importance to the legal system.

So the question of state neutrality deserved a correctness review – the reviewing court had to ignore the Tribunal decision and reconstruct it. All other questions merely deserved a reasonableness review – the reviewing court just has to make sure the Tribunal didn’t do anything ridiculous.

The next thing Gascon deals with is the issue of the religious symbols. A quick recap is in order.

Simoneau’s original complaint to the Commission had (basically) two requests. He wanted the prayer stopped, and he wanted religious symbols – specifically a large crucifix, and a large, glowing statue of the Sacred Heart – removed from the municipal public meeting areas. The Commission investigated the prayer, but declined to investigate the religious symbols. The Tribunal decided to conduct its own investigation of the religious symbols, and ultimately ruled that they had to be removed. The Court of Appeal pointed out that the Tribunal was out of its jurisdiction to conduct its own investigation, and thus shouldn’t have ruled on the symbols… but then went ahead and ruled on them regardless. (Allan R. Hilton alone dissented on the latter move.) By somewhat ridiculous reasoning (explained in detail in the previous instalment), it found the symbols were okay.

Gascon agreed with the Court of Appeal’s decision that the Tribunal was wrong to investigate the symbols… but he disagreed with them going ahead and ruling on them. Since the Commission didn’t investigate them, the Tribunal shouldn’t have mentioned them at all (except to say it couldn’t rule on them because the Commission didn’t investigate), and thus they never should have been considered in any of the appeals.

Basically, the whole issue of the religious symbols was just never considered, in the final ruling. That means they don’t have to be taken down… but it also means they are open to a new challenge. And given that the Tribunal already ruled against them, it’s a safe bet that if anyone else made a complaint, that would be the end of religious symbols in public meeting spaces. So it’s not really a win for secularism… but it’s certainly not a loss.

Now we get to the meat of the issue – the prayer.

Gascon notes there are three questions at hand: whether the prayer is religious, whether it amounts to discrimination against atheists like Simoneau, and whether the state’s duty of neutrality allows for religious displays or rituals.

I’m not going to go into too much detail on the duty of neutrality in this instalment, because I’ll be covering it in great detail in a future instalment. For now, I’ll just say that Gascon reasons that the state must neither favour nor hinder any belief (SCC p.72), and that the state and its officials – in the performance of their duties – must remain strictly religiously neutral (SCC p.74 & p.119), but the religious freedom of state officials can not be restricted in matters that are not state business (SCC p.119). Obviously municipal meetings are state business, which is why making a prayer part of the proceedings is not cool.

That the prayer is religious was never really disputed at any point in the case history. There were attempts by Tremblay’s expert witnesses to describe the prayer as non-religious: Solange Lefebvre tried to pass it off as métaphorique / metaphorical (TDP p.152), and Gilles Bibeau described it as … un rituel identitaire et non pas d’une action organisée qui donnerait aux délibérations une connotation religieuse / … an identity ritual, not an organized action that would give the deliberations a religious connotation (TDP p.174). The Tribunal laughed off those attempts – I’ll go into detail how in a future instalment – so it seems they’d pretty much given up on that tactic by the time they hit the Supreme Court. Gascon even notes (SCC p.95) that Tremblay’s side admitted that the prayer is religious during the Supreme Court hearing.

So the real question was whether it was discriminatory, and whether it interfered with Simoneau’s freedom to (not) practise his (non-)religion. Gascon admits that the state’s duty of neutrality doesn’t necessarily imply that it has to remove all signs of its religious heritage. But it cannot claim religious heritage as a justification for something discriminatory. So: was the prayer discriminatory?

Gascon uses Tremblay’s own words – both in public and in the Tribunal hearing – to show that the point of the prayer was indisputably about declaring a religious identity that excludes others. Tremblay had declared to the press: « ce combat-là, je le fais parce que j’adore le Christ » / I’m in this battle because I worship Christ (TDP p.88). He not only repeated this in the Tribunal, he elaborated on it. Tremblay further commented (TDP p.90):

« Ce sont des choses que j’ai dites. Effectivement, si on insiste autant sur ça, c’est parce qu’on a la foi. C’est parce qu’on veut le manifester. C’est tout le conseil municipal qui est derrière moi. »

(“I said those things. It’s true we place much emphasis on that because we have faith. And because we want to show it. The entire municipal council is behind me.”)

That’s pretty blatantly an admission that the point of the prayer is to push the religious beliefs of the council, not to express “cultural heritage”. They even went further and told the Supreme Court that Simoneau and MLQ were trying to prevent the city from “expressing its belief” (SCC p.118).

So the prayer was clearly not merely a historical relic – a tradition devoid of religious significance. It was clearly about the councillors assigning religious beliefs to the city, and using the city’s power to push those beliefs.

That meant that Simoneau had three choices: participate in a religious ritual in defiance of his own beliefs, stay quiet and refuse to participate, or leave the room until it was over. Demanding participation is a pretty obvious violation of religious freedom. But Simoneau was not forced to participate, because he could either stay silent or leave for a few minutes. Because of this, the Québec Court of Appeal ruled there was no real discrimination – that whatever discrimination Simoneau faced, it was trivial.

Gascon said no, that doesn’t fly. In order not to be forced to participate, Simoneau was forced to identify himself as a nonbeliever, as a minority, and as an outsider. You cannot make a discriminatory practice non-discriminatory by forcing people who don’t want to comply to identify themselves by asking for an exemption (SCC pp.124–125).

In fact, Gascon repeatedly notes that adding an extra minute or two to allow nonbelievers to leave and come back (as the by-law did) exacerbates the discrimination (SCC p.122).

So that’s that – the prayer was religious, and it was discriminatory. The Tribunal’s findings were sound.

Before signing off, Gascon touches on a few more issues that came up.

The first was about ‘non-denominational’ prayers. Recall that after he realized that Simoneau was really going through with his complaint and would almost certainly win, Tremblay tried to disguise his previously blatantly Catholic prayer with a ‘non-denominational’ prayer. This didn’t fool the Commission or the Tribunal, but amazingly it did bamboozle the Québec Court of Appeal. They made the profoundly poorly-reasoned leap that since the prayer was valid for many beliefs, it was “universal”.

To that Gascon calls bullshit.

First Gascon points out that the Tribunal found that prayer was anything but non-denominational, and their reasoning was quite sound (SCC p.136). The only way the Court of Appeal could come to a different conclusion was by ignoring half the evidence… which they did when they dismissed MLQ’s sole expert witness.

More importantly, Gascon pointed out that no matter how ‘non-denominational’ you make a prayer… it’s still religious. Which means it excludes non-religious people. Which means it’s discriminatory (SCC p.137). There’s no way you can get around that.

Finally, Gascon talks about the mention of God in the Charter preamble. He sides with widespread legal opinion that the preamble merely articulates the “political theory” that the Constitution – and by extension, Canada itself – is based on. It does not override anything actually in the Charter, or the rest of the Constitution (SCC p.147). Freedom of conscience and religion is described as a fundamental freedom, and that takes precedence.

So, here’s a summary of the Supreme Court ruling:

• The Québec Court of Appeal was wrong to use the correctness standard for the entirety of the Tribunal’s decision just because a relevant side question (possibly) triggered it. It should have used the reasonableness standard, and given deference to the Tribunal’s findings.
• They were doubly wrong to dismiss MLQ’s sole expert witness based on a technicality that didn’t apply. They should not have ignored Daniel Baril’s evidence and testimony (which basically tore apart all the evidence and testimony of Tremblay’s expert witnesses).
• The state has a duty of neutrality with respect to religion. (I’ll cover this in more detail in a future instalment.)
• The prayer was religious and discriminatory, and any prayer – even a truly non-denominational one – would have been religious and discriminatory as well.
• Even if it could be argued that the prayer was “traditional”, or that reciting it was about recognizing Québec’s “cultural heritage”, that is not justification for continuing a discriminatory practice.
• Providing an exemption from an otherwise mandatory discriminatory practice does not fix anything. Forcing someone to choose between taking part in a practice that is in violation of their beliefs or taking action that would identify them as an outsider is straight up discrimination.

We’ve already seen some of the fallout from the ruling, as municipalities across the province alternately accepted it and ceased praying, or freaked out about it and declared their intention to defy. But it’s hard to imagine just how far-reaching the effects might actually be. We never got to see the end game in the case of Zunera Ishaq – the Muslim woman who didn’t want to make the Oath of Citizenship publicly because she wears a niqāb (though she did offer to do it privately) – because the government withdrew its challenge. (She was winning all the way up to the Federal Court of Appeal, and MLQ v Saguenay was cited, though it was not the primary factor in the original decision striking down the ban on niqābs.) What about the Oath of Allegiance? Its standard form includes swearing and “so help me God”, and although there is a non-religious exemption allows affirming with no mention of God… that’s technically forcing nonbelievers to identify as such.

At any rate, there’s no doubt that the ruling establishes Canada as a secular country, at least de facto if not necessarily de jure. There’s still plenty of work to be done removing religious preference and privilege from our country’s laws and practices, but MLQ v Saguenay was a huge step in the right direction, and it gave us some powerful tools we can use toward making Canada fair and secular.